Client Update: March 2024

Client Update

Hotel California Forfeits Court Costs In Its Lovely FEHA Case.

Amanda Neeble-Diamond sued the Hotel California by the Sea under the Fair Employment and Housing Act (FEHA). The trial court entered judgment in favor of Hotel California after a jury concluded Neeble-Diamond was an independent contractor, rather than an employee.

Hotel California filed a cost memorandum as well as a separate motion seeking an award of attorney fees. The judgment awarded approximately $180,000 in costs that Hotel California had incurred during the litigation. The trial court denied the motion for attorney fees. The trial court explained that as a prevailing defendant in a FEHA case, Hotel California was only entitled to attorney fees if Neeble-Diamond’s FEHA claims were objectively frivolous, which Hotel California could not show. Neeble-Diamond appealed the cost award.

The California Court of Appeal reversed the cost award. As a general rule, the prevailing party in a lawsuit is entitled to recover allowable costs through a cost memorandum. But, in FEHA cases, a prevailing defendant has no automatic right to recover costs. Instead, the defendant must make a motion for the court to award costs, based in part on a specific finding that the case was frivolous.

Hotel California failed to make a motion for an award of cost as required in FEHA cases. Instead, Hotel California simply filed a cost memorandum. Because Hotel California failed to file the necessary motion for costs, as it had for attorney fees, it forfeited its court costs. The Court of Appeal found that the trial court erred in entering a judgment that included the approximately $180,000 cost award.

Neeble-Diamond v. Hotel California by the Sea, LLC., 99 Cal.App,5th 551 (2024).

Note:

This case is a short and sweet primer regarding collecting trial costs in a FEHA case.

discrimination new to the Firm!

Caroline Cohen is an Associate in our San Francisco office, where her extensive experience in employment law and litigation makes her a valuable asset to our clients.

Ashley Riser is an Associate in our Sacramento office, where she specializes in providing expert advice and counsel in labor and employment law matters.

discipline

Court Says Detention Officer’s Disciplinary Appeal Was Premature.

Nathan Jackson worked as a detention officer for the Los Angeles Police Department. The City served Jackson with a notice of intent to suspend him for 10 days. In the final notice, all charges were upheld and remained substantially the same as in the initial notice, except that the charge that Jackson reported “unfit for duty” was replaced with the charge that Jackson did not wear his official Department-approved uniform.

Following a hearing, the Board of Civil Service Commissioners upheld the suspension and sustained each count supporting it. Jackson then filed a petition for writ of administrative mandate in the superior court alleging Skelly violations and seeking to have his suspension set aside and backpay awarded. The superior court found that the evidence supported all but one of the charges. The court found the record was unclear regarding whether the standards of one of the charges was met. Also, the court was concerned with Skelly violations since one of the charges was changed in the final notice. Therefore, the court vacated the suspension and ordered the Board to reconsider its decision based on these concerns. Jackson appealed.

The California Court of Appeal dismissed the appeal, finding that it was premature. Because the trial court ordered the Board to reconsider its findings, further appeal rights would be triggered if the Board imposed different discipline, or declined to award Jackson any backpay. Also, Jackson could file a new or supplemental petition for writ of mandate based on the Board’s new decision, and if Jackson was still dissatisfied, he could appeal from that judgment. To allow the appeal to proceed now would result in an inefficient, piecemeal disposition.

The Court dismissed Jackson’s appeal as premature. Jackson v. Board of Civil Service Commissioners of the City of Los Angeles (City of Los Angeles), 2024 Cal.App LEXIS 77.

University Properly Terminated Professor For Sexually Abusing Two Women Off Campus.

Gopal Balakrishnan was a tenured professor at the University of California Santa Cruz (UCSC). In 2017, an anonymous letter accused Balakrishnan of a pattern of sexual intimidation, harassment, and assault. Balakrishnan denied the accusations. UCSC hired an outside investigator and asked individuals with information to contact its Title IX office. UCSC received multiple complaints, and launched a single investigation into four specific complaints- those of Jane Doe, Brian G., Anneliese H., and Patrick M.

The investigation sustained three of the allegations. The investigator found that Balakrishnan had unwelcome sexual conduct in violation of UCSC’s Sexual Harassment Policy with Anneliese H., a UCSC student he had walked home from an off-campus graduation party, two days after her graduation ceremony. Anneliese had become sick from drinking and was on the verge of blacking out at the party. When she “came to” she found Balakrishnan trying to have sex with her.

The investigation also found that Balakrishnan gave an underage Brian G. alcohol and cocaine, and that Balakrishnan was physically aggressive with Patrick M., his advisee at the time.

The investigation did not sustain the allegation that Balakrishnan had tried twice tried to get into a bed with Jane Doe, a fellow academic, at an off-campus conference. The investigation found that it was not clear that the Policy applied to individuals outside of the UCSC community.

The investigation reports were forwarded to the UCSC’s Charges Committee (Committee). The Committee found probable cause as to three of the complaints. On Jane Doe’s complaint, the Committee acknowledged the investigator did not find a violation of the Sexual Harassment Policy. But, the Committee did find probable cause for a violation of the Faculty Code of Conduct, which permitted discipline against faculty members for serious misconduct.

After formal hearings, UCSC’s Privileges and Tenure Committee (PT Committee) dismissed the charges regarding Brian G. and Patrick M. due to insufficient evidence and the three-year limitations period in the Faculty Code of Conduct. Based on the charges relating to the two women, the PT Committee recommended dismissal and denial of emeritus status. Chancellor Cynthis K. Larive adopted that recommendation. University of California President Janet Napolitano then recommended, based on her own independent review of the record, that the Regents dismiss Balakrishnan. The Regents unanimously voted in favor of his dismissal and denial of emeritus status.

Balakrishnan challenged the decision in the superior court, which denied his petition for a writ of administrative mandate. At the California Court of Appeal, Balakrishnan argued that UCSC lacked jurisdiction to discipline him as to Jane Doe. He argued Doe was not a UCSC student, and that he could not be disciplined because his conduct did not significantly impair UCSC’s central functions. Finally, he argued that he could not be disciplined for violating provisions of the Code of Conduct that were not enumerated, and that dismissal and denial of emeritus status was excessive.

The Court of Appeal disagreed. The Court, gave great deference to the findings the Regents and the PT Committee had made, and decided that the Code of Conduct extended to interactions between Balakrishnan and the “community” at large, and that his conduct was in stark violation of those rules. The Court also found that his conduct significantly impaired the UCSC’s central functions. Finally, although Anneliese H. had already walked in her graduation ceremony by the time of the abuse, the Court found that she remained a student and member of the UCSC community, as her grades and degree had not yet been conferred, so the violation of the Sexual Harassment Policy was warranted. The Court of Appeal held that the penalties of termination and denial of emeritus status were not excessive, given the egregious sexual abuse of two women.

Balakrishnan v. Regents of the University of California (2024) 99 Cal.App.5th 513.

Retaliation

Whistleblower Need Not Prove Employer’s Retaliatory Intent.

The whistleblower-protection provision of the Sarbanes-Oxley Act of 2002 prohibits covered employers from discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against an employee because of protected whistleblowing activity.

In 2011, Trevor Murray was a research strategist at securities firm UBS. Murray worked for UBS’s commercial mortgage-backed securities (CMBS) business. Murray reported on CMBS markets to current and future UBS customers. Federal Securities and Exchange Commission (SEC) regulations required him to certify that he independently produced his reports and his reports accurately reflected his own views.

Two leaders of the CMBS trading desk pressured Murray to skew his reports to be more supportive of their business strategies. They instructed Murray to clear his research articles with the trading desk before publishing them. Murray advised his direct supervisor, but the pressure from the trading desk only increased. Murray’s supervisor recommended to his own supervisor that Murray be removed from UBS’s head count, or alternatively, transferred to a trading desk position where he would not have SEC certification responsibilities. When the trading desk declined to accept his transfer, and despite a strong performance evaluation, Murray was fired.

Murray filed a complaint with the US Department of Labor (DOL) alleging that his termination violated §1514A of Sarbanes-Oxley Act because he was fired in response to his internal reporting about fraud on shareholders. When the DOL did not issue a final decision on his complaint within 180 days, Murray sued in US District Court. The jury found that Murray had established his §1514A claim and that UBS had failed to prove, by clear and convincing evidence, that it would have fired Murray even if he had not engaged in protected activity.

UBS appealed the decision, and Murray crossappealed for back pay, reinstatement, and attorney’s fees. A panel of the US Court of

Appeals for the Second Circuit vacated the jury’s verdict and remanded for a new trial. The appellate court concluded that the Sarbanes-Oxley Act’s anti-retaliation provision requires a whistlebloweremployee to prove “retaliatory intent”, and that the trial court failed to so instruct the jury. The US Supreme Court granted certiorari because the Fifth and Ninth Circuit Courts had rejected the retaliatory intent requirement. The USSC reversed to align with the Fifth and Ninth Circuits.

The Court held that when whistleblowers invoke the protections of the Sarbanes-Oxley Act, they bear the initial burden of showing that their protected activity was a contributing factor in the unfavorable personnel actions at issue. But the whistleblower need not prove that the employer acted with retaliatory intent. The burden then shifts to the employer to show that it “would have taken the same unfavorable personnel action absent the protected activity.”

The Court found that the term “discriminate” did not impose a requirement that a whistleblower prove the employer’s “retaliatory intent” or animus. The Court reasoned that burden-shifting frameworks have long provided a mechanism for getting at intent in employment discrimination cases, and the contributing-factor burden-shifting framework is meant to be more lenient than most. Finally, the Court rejected UBS’s argument that without a retaliatory intent requirement, innocent employers will face liability for legitimate, nonretaliatory personnel decisions. The Court stated that the employer may avoid liability by demonstrating by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected behavior.

Murray v. UBS Securities, LLC., 217 L.Ed 2nd 343 (2024).

Note:

One of California’s whistleblower statutes also requires an employer to submit “clear and convincing” evidence that it would have taken the same unfavorable personnel action in the absence of the protected behavior. (Labor Code sections 1102.5- 1102.6.) The USSC gave this advice to employers to determine if this standard has been met: The right way to think about that kind of same-action causation analysis is to change one thing at a time and see if the outcome changes. The question is whether the employer would have retained an otherwise identical employee who had not engaged in the protected activity.

laborrelations

PERB Finds Retaliation But No Denial Of Right To Union Representation.

Sean Kane worked as a pharmacist for the State of California (California Correctional Health Care Services) (CCHCS) at California State Prison Corcoran (Corcoran). Kane was also an AFSCME, Local 2620 job steward. Kane reported to Michael Conner, the Pharmacist-In-Charge at Corcoran. Conner reported to CCHCS Chief Executive Officer Celia Bell.

Between January 2020 and November 2020, Conner repeatedly advised staff to wear a face mask and stay six feet away from other staff in accordance with COVID-19 restrictions.

Kane filed a grievance alleging that Conner had violated the parties collective bargaining agreement by discontinuing pharmacists’ standby assignments, thereby eliminating their ability to earn extra pay, and instead using voluntary callback procedures. Bell denied the grievance.

On November 4, 2020, Kane sent identical information requests in separate e-mails to Conner, Labor Relations Advocate Elane Jalil, and Personnel Specialist Helen Ybarra. In each e-mail, Kane identified himself as an AFSCME steward and asked if any Corcoran pharmacists had received standby pay since September 14.

After exchanging several emails on November 3 about Kane’s efforts to purchase a needed medication, Conner asked Kane to meet with him in his office on November 4. Kane arrived and remained standing in Conner’s doorway. As Conner attempted to discuss how to acquire

the needed medication, Kane interrupted and demanded responses to the e-mails Kane had sent in his capacity as an AFSCME steward regarding standby assignments. This back and forth continued, before Kane demanded union representation. Conner told Kane that their meeting was not disciplinary, and that no representative was necessary. Kane continued to talk over Conner and request representation, at which point Conner told Kane that his actions may constitute insubordination.

Kane, still in the doorway, called for another employee to join as a witness. Conner then stood up, walked to the doorway, and told the other employee to remain at her workstation. Kane turned back toward Conner, leaned forward and curled his fingers. Conner, noticing that Kane’s face mask was too low to cover his mouth and nose, asked Kane to step back and pull up his mask. Kane pulled up his mask but did not immediately step back. Conner then said that Kane should return to his workstation. Kane complied.

On November 5, Corcoran administrators convened a workplace violence committee meeting and decided that Kane would be temporarily reassigned. When Kane was being escorted to his new work location, Kane passed Conner’s office. Kane kicked the 100-pound steel office door, slamming the door shut and startling Conner.

Following an investigation, CCHCS issued Kane a Notice of Adverse Action (NOAA), dismissing him for allegedly violent conduct on November 4 and 5. Kane appealed to the State Personnel Board (SPB). The SPB ruled that Kane’s conduct, while inappropriate, was not violent as CCHCS alleged, and lowered the discipline to a onemonth suspension.

AFSCME filed an unfair practice charge against CCHCS, alleging that CCHCS unlawfully denied Kane’s request for union representation during the November 4 discussion at Conner’s office, and that CCHCS had terminated Kane in retaliation for his protected conduct. PERB’s Office of the General Counsel (OGC) issued a complaint. Following a hearing before an administrative law judge (ALJ), both parties filed exceptions.

PERB found that AFSCME failed to establish that Conner unlawfully denied AFSCME or Kane representational rights. PERB noted that Conner began the meeting with a discussion of routine work matters. If Conner and Kane had discussed the specifics of the pending information requests relevant to the grievance, that would have triggered representational rights. But nothing required Conner to discuss the information requests during a brief, work-related meeting Conner had called, and Conner declined to do so when Kane mentioned them. PERB also found that it was a closer question whether representational rights had been triggered when Conner told Kane that his actions may constitute insubordination—a comment that came after the employee first demanded union representation. Nevertheless, after Kane called the other employee to join the meeting, Conner told the employee to stay at her workstation, asked Kane to comply with COVID-19 protocols, and ended the meeting without any investigative questions or further mention of insubordination. None of these events triggered representational rights.

On Kane’s retaliation claim, PERB found Kane’s protected activity was at least a substantial or motivating cause of the decision to discipline. In support of that finding, PERB noted that Kane’s protected requests for information occurred within days before his discipline, and that management exaggerated the facts of the Kane’s misconduct.

PERB found insufficient record evidence to determine what level of discipline CCHCS would have imposed absent Kane’s protected activities. PERB was particularly interested in evidence regarding the disciplinary penalties for other employees, who had no previous adverse actions – like Kane.

PERB remanded the matter for mediation and, absent a settlement, for further proceedings to determine what level of discipline CCHCS would have imposed absent the employee’s protected activities.

State of California (California Correctional Health Care Services) (2024) PERB Dec. No. 2888-S.

Note:

This case also discusses the collateral estoppel effect of the State Personnel Board’s decision on the UPC.

For more information on some of our upcoming events and trainings, click on the icons:

The LCW Labor Relations Certification Program is designed for labor relations and human resources professionals who work in public sector agencies. It is designed for both those new to the field as well as experienced practitioners seeking to hone their skills. Participants may take one or all of the classes, in any order. Take all of the classes to earn your certificate and receive 6 hours of HRCI credit per course!

1. March 14 & 21, 2024 - Communication Counts!

2. April 4 & 11, 2024 - The Rules of Engagement: Issues, Impacts & Impasse

3. May 16 & 23, 2024 - Nuts & Bolts of Negotiations

The use of this official seal confirms that this Activity has met HR Certification Institute’s® (HRCI®) criteria for recertification credit pre-approval.

benefits

By: Stephanie J. Lowe

IRS Lowers ACA Employer Mandate Penalties For 2025.

The IRS has announced the adjusted 2025 penalty amounts for violations of the Affordable Care Act’s employer shared responsibility provisions (otherwise known as the ACA Employer Mandate). The ACA Employer Mandate authorizes the Internal Revenue Service (IRS) to assess a penalty on applicable large employers under one of the following two circumstances:

A. The applicable large employer fails to offer “substantially all” of its full-time employees and their dependents the opportunity to enroll in minimum essential coverage and any full-time employee receives a subsidy for coverage through Covered California (Penalty A) (26 U.S.C. section 4980H(a) (1)); or

B. The applicable large employer offers coverage to full-time employees and their dependents that is “unaffordable” or does not offer “minimum value” and a full-time employee receives a subsidy for coverage through Covered California (Penalty B). (26 U.S.C. 4980H(b)(1).)

The amount of the penalties changes year-to-year. For plan years beginning after December 31, 2024, Penalty A will be $2,900 per year ($241.67 per month) multiplied by the number of full-time employees employed by the employer less 30. Penalty B will be $4,350 per year ($362.50 per month) multiplied by the number of fulltime employees who obtain subsidized coverage through Covered California. These penalty amounts for 2025 are lower than the penalty amounts currently in place for 2024 ($2,970 per year for Penalty A and $4,460 per year for Penalty B).

Here are some examples of how Penalty A and Penalty B are calculated based on the penalty amounts for 2025:

Penalty A Example: If an applicable large employer has 100 full-time employees and fails to provide “substantially all” of its full-time employees and their dependents the opportunity to enroll in minimum essential coverage and at least one of those employees receives a subsidy for coverage through Covered California for 12 months, then the IRS could assess a Penalty A at $2,900 multiplied by 70 (100 minus 30 full-time employees), which is $203,000.

Penalty B Example: If an applicable large employer has 100 full-time employees and fails to offer coverage that that is affordable and provides “minimum value”, and 10 of those employees receive a subsidy for coverage through Covered California for 12 months, then the IRS could assess a Penalty B in the amount of $43,500 ($4,350 multiplied by 10 employees who obtain the subsidy).

While employers who intend to offer full-time employees and their dependents with affordable minimum essential coverage hope to never face these penalties, it helps to be aware of the adjusted amounts year-to-year as part of staying up to date on the ACA. For more information, see IRS Revenue Procedure 2024-14.

Reminder: Maintain Records Of ACA Filings.

With the April 1st deadline for electronically filing ACA returns (Forms 1094-C and 1095-C) quickly approaching, agencies should maintain a file of records after completing the filings. Keeping a record of the filings will serve to defend the agency in the event the IRS charges the agency with a potential penalty under for failing to furnish and/or file forms under Internal Revenue Code sections 6721 and 6722. Applicable Large Employers who must comply with these ACA reporting requirements should retain the following records:

corner

1. Documentation proving the employer furnished (handed out or mailed) Forms 1095-C to current and former full-time employees by the March 1 deadline in advance of the filing with the IRS.

2. A copy of all Forms 1094-C and 1095-C within each submission to the IRS, along with the Receipt ID for each transmission.

3. A document showing the transmission status when the IRS completes processing. The transmission status should state one of the following: Accepted, Accepted With Errors, Partially Accepted, or Rejected.

4. If the transmission status is anything but “Accepted,” maintain the Error Data File. The Error Data File contains a detailed list of errors, which are critical to understand for making corrections. Employers should troubleshoot the error and refile the forms without error as soon as possible.

Employers who use a third-party transmitter to file documents should obtain these same records in case the third-party transmitter becomes unavailable to file corrections for the employer. The employer will be ultimately responsible for all filings and potential penalties even if the employer utilizes a third party vendor or transmitter.

Cafeteria Plan Compliance

Question:

Question: Can an employer offer a 457(b) deferred compensation plan as a cafeteria plan benefit?

Answer: No. Section 125 cafeteria plans may not offer any benefit that defers the receipt of compensation, with limited exceptions for 401(k) plans and certain health savings accounts. (26 U.S.C. section 125(d) (2).) Since 457(b) plans are deferred compensation

plans, they cannot be offered as a cafeteria plan benefit. For example, an employer cannot allow employees to make elections to contribute to a 457(b) plan through a cafeteria plan’s salary reduction agreement process or allow an employee to place unused employer contributions from the cafeteria plan directly into a 457(b) plan. While employers may certainly offer a 457(b) plan, it must be offered and administered outside of and unrelated to a cafeteria plan.

LCW BENEFITS BEST PRACTICES TIMELINE

Each month, LCW presents a monthly benefits timeline of best practices. This timeline is intended to apply to agencies that are applicable large employers for Affordable Care Act purposes.

March

• If agency administers the maximum grace period for health FSAs or DCAPs, the period ends March 15 for plan years that ended December 31, 2024.

• Prepare for the April 1, 2024 deadline to e-file Forms 1094-C and 1095-C. Ensure the IRS accepts the filing.

• If agency would like an automatic 30-day extension to file Forms 1094-C and 1095-C, agency must submit Form 8809 on or before the due date of the returns.

Did You Know?

Whether you are looking to impress your colleagues or just want to learn more about the law, LCW has your back! Use and share these fun legal facts about various topics in labor and employment law.

• Last year, Governor Newsom signed into law the Legislative Employer-Employee Relations Act (LEERA) (effective July 1, 2026). LEERA permits employees of the California Legislature to unionize and collectively bargain with their employers (the Assembly Committee on Rules and Senate Committee on Rules). PERB will have jurisdiction over unfair labor practice charges, but the new law prohibits PERB from issuing a decision or order that would intrude upon or interfere with the Legislature’s core function of efficient and effective lawmaking, or the essential operation of the Legislature.

• No provision of federal or state law requires meal or rest periods for local public agency employees. The Fair Labor Standards Act (FLSA) does not require that employers provide meal or rest periods, and the relevant California laws do not apply to public agencies. Many, if not all, public employers in the state still choose to provide meal and rest breaks.

• Emergency conditions do not relieve a public employer from the duty to give an employee organization notice and an opportunity to meet and confer.

Internal Affairs Seminar

Oxnard: March 6 & 7, 2024, 9:00 a.m. - 4:00 p.m.

San Ramon: April 24 & 25, 2024, 9:00 a.m. - 4:00 p.m.

A public safety administrative investigation is a key element in whether an agency will be successful in imposing discipline. What do decision-makers, hearing lawyers and courts look for in an investigation report? This two-day course will unlock the difference between a public safety administrative investigation that supports discipline versus those that undermine it.

This POST-approved course provides a complete guide to conducting a fair and thorough public safety investigation that will create a defensible disciplinary action in the event of sustained findings. You will gain an understanding of the impact that good decision-making and strategy have on the agency’s success in defending investigations and winning appeals.

This 2-day seminar will encompass legal aspects of a properly conducted public safety investigation, including topics such as:

• Overview of the Public Safety Officers Procedural Bill of Rights Act (POBR) and the Firefighters Procedural Bill of Rights Act (FBOR) and the consequences of violations for your agency

• Best practices in initiating and organizing the public safety investigation

• How to obtain documents and other evidence

• Interview techniques and transcript recommendations, plus pitfalls to avoid

• Identifying common mistakes during investigations and solutions

• Current and emerging legal trends in public safety allegations and discipline

Consortium Call Of The Month

Members of Liebert Cassidy Whitmore’s employment relations consortiums may speak directly to an LCW attorney free of charge regarding questions that are not related to ongoing legal matters that LCW is handling for the agency, or that do not require in-depth research, document review, or written opinions. Consortium call questions run the gamut of topics, from leaves of absence to employment applications, disciplinary concerns to disability accommodations, labor relations issues and more. This feature describes an interesting consortium call and how the question was answered. We will protect the confidentiality of client communications with LCW attorneys by changing or omitting details.

Question: Answer:

Our agency received notification through the DOJ that an employee who is required to drive as an essential job function received a DUI. May I ask the employee to provide proof that they currently have a valid driver’s license? If they are not able to provide that proof, does the agency have an obligation to accommodate the employee while they deal with the legal process?

You may request the employee to provide proof of a valid driver’s license in this scenario. If they are unable to provide proof of the license, the agency does not have an obligation to accommodate the employee while they deal with the legal process, absent any limitations in the agency’s personnel rules, MOU provisions covering the employee, or past practices regarding other employees with DUI’s. In general, an employer may take disciplinary action against an employee whose motor vehicle violations affect their job performance or ability to perform their essential job functions.

Be aware that the agency may not take any adverse action, including disciplinary action, against an employee based solely on the employee’s DUI citation or arrest. (See Labor Code section 432.7.)

On The Blog

Looking Back (and Forward) at COVID-19 and the Interactive Process

By: Kelsey Ridenhour

Though it is tempting to move on from the pandemic and to try and forget the deadly illness that started it, COVID-19 looks like it is here to stay in one form or another. As updated on February 16, 2024, the California Department of Public Health reported a 7-day weekly average of 1,882 hospital admissions and 3.2% of deaths in the state attributable to COVID-19, with a COVID-19 test positivity rate of 7.1%. In comparison, influenza was at a 7-day weekly average of 433 hospital admissions, .2% of deaths, and a test positivity rate of 6.5%. Still, these numbers paint a rosy picture when compared to the height of the pandemic and for many, COVID-19 is now an afterthought as we return to offices, movie theaters, and our “normal” lives.

But as a new normal sets in, it is probably a good idea for employers to recognize and consider the following lasting effects of the COVID pandemic on their workforce.

Long COVID as a Disability

For some, living with Long COVID is the new normal. In a September 2023 Data Brief published by the Centers for Disease Control and Prevention (“CDC”), survey data from 2022 showed that 6.9% of adults in the nation have had Long COVID at least once and 3.4% of adults actively had Long COVID at the time of the survey. While these percentages seem small, it is important to remember that the workforce in 2022 was over 160 million strong. Extrapolating the CDC’s survey results to that figure means that about 5.44 million members of the workforce had Long COVID. Other gathered statistics have that figure as high as 16.3 million workers.

Long COVID symptoms can last weeks, months, or even years after contracting COVID-19. A non-exhaustive list of common symptoms includes tiredness and fatigue, difficulty thinking (referred to as “brain fog”), shortness of breath, headache, dizziness, heart palpitations, chest pain, cough, joint or muscle pain, depression or anxiety, fever, and loss of taste or smell. Some less common symptoms can include damage to organs, such as the heart, lungs, kidneys, skin, and brain, or autoimmune conditions. It is even possible to develop other health conditions such as diabetes, heart conditions, blood clots, or other neurological conditions following COVID-19.

In July 2021, the United States Department of Health and Human Services Office for Civil Rights recognized that the symptoms of Long COVID can, under qualifying circumstances, be considered a disability under the Americans with Disabilities Act (the “ADA”). To qualify as a disability under the ADA, Long COVID must cause a physical or mental impairment that substantially limits one or more major life activities, such as walking, seeing,

hearing, or speaking. As a result, Long COVID is not always considered a disability, and an individualized assessment is necessary to determine whether a symptom substantially limits a major life activity.

In California, the Fair Employment and Housing Act (the “FEHA”) provides an even broader definition of disability. Though the ADA’s definition of disability requires that it “substantially limits” a major life activity, the FEHA definition requires only that it “limits a major life activity.” See Cal. Gov. Code § 12926. With potentially millions of workers still suffering from the effects of Long COVID — which may or may not qualify as a disability based on the circumstances — it is a good time to review what the law requires of employers to avoid disability discrimination when requiring employees to come back to the office.

The Interactive Process and Telework as a Reasonable Accommodation

When asking employees with disabilities to return to the office, California employers need to remember that they have a continuing obligation to engage in a “timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations.” (Gov. Code, § 12940, subd. (n).) Whether by the employee’s request or when the employer has knowledge of an employee’s disability, an employer must engage in the interactive process. This is a “two-way” street that requires both the employer and the employee to participate. While the interactive process has several nuances, at its most basic level it requires the employer and employee to work together to: (1) analyze the job position’s functions to establish essential and nonessential tasks, (2) identify precise limitations of the position, (3) find possible accommodations and assess each, (4) consider the preference of the employee, and (5) implement the accommodation that is most appropriate for employee and employer, while giving primary consideration to the employee’s preference unless another equally effective accommodation may be used instead. Employers should document their efforts throughout.

Following the pandemic, one rising requested accommodation is telework. Our firm has discussed telework before, and readers are encouraged to read our past guidance, available here, here, and here. As early as 2003, the United States Equal Employment Opportunity Commission (“EEOC”) recognized telework as a possible reasonable accommodation. So while telework as a reasonable accommodation is hardly new, the pandemic brought it into renewed focus and tested its limits. For some, this meant suspending policies that restricted or forbade telework and building infrastructure to support remote workers; for others, it meant temporarily excusing certain essential functions to allow office closures. Some employees even parlayed their newfound telework freedom into out-of-state, or in the rare case out-of-county, work locations.

As a result, the interactive process factual landscape may have shifted significantly during the pandemic and employers should take care to reassess whether telework is a reasonable accommodation in light of what happened during pandemic conditions. Luckily, the EEOC has provided some guidance on COVID-19’s impact on the interactive process. Notable highlights include that telework is not an automatic reasonable accommodation just because the employer had authorized it in order to prevent the spread of COVID-19; that the temporary excusal of one or more job position essential functions to allow telework did not permanently eliminate those essential functions; and that telework may pose an undue hardship on the employer even where the employer previously allowed it. Similarly, employees may be able to point to telework allowed during the pandemic as “proof of concept” that telework does not impose an undue hardship on employers or that certain job functions are not truly essential. Central to each of these positions is that the interactive process is fact-specific.

So, if you are an employer who has had thoughts about requiring a return to office, I’d suggest you keep the requirements of the ADA and the FEHA in mind. Long COVID has affected a significant amount of the workforce and may continue to affect even more, so be on the lookout for any employees that may need a reasonable accommodation to counter that condition. And if you do learn an employee needs a reasonable accommodation, be prepared for new pandemic-related facts to play an increasing role in your interactive process analysis.

View the full blog here.

Liebert Cassidy Whitmore